Metcalfe And Mansfield Must Wait On Its Turn

Both sides in Barclays Bank PLC v Metcalfe & Mansfield Alternative Investments VII Corp., in its capacity as trustee of Devonshire Trust, et al. [Metcalfe & Mansfield] (involving the treatment of asset-backed commercial paper in a bankruptcy settlement) have now stated their hopes that, should the Supreme Court of Canada hear the case, it might come to a quick decision. More pointedly, counsel for Ivanhoe Mines say they want a hearing by the end of September.

Now, obviously the Metcalfe & Mansfield case is a serious one, as it involves the disposition of $32 billion in assets, and just as obviously every client wants a speedy resolution to their legal dispute. Neither of these facts are comment-worthy. What is comment-worthy is the unspoken subtext in the article: that business matters should be considered more important by the Supreme Court of Canada than others.

Bluntly: the involved parties in Metcalfe & Mansfield hold $32 billion of investments that are questionable, to say the least (backed as they are by subprime mortgage investment tools). It is particularly understandable in this instance that they want their case settled and done, one way or the other; their asset-backed commercial paper is not going to get more valuable with the progression of time and indeed will most likely depreciate sharply the longer they wait. (They have already lost money on these investments; the only remaining question is how much more they will lose, and how they will lose it.) And, as this writer has said before, given the magnitude of finances at stake, the Supreme Court should and most likely will hear the case.

But prioritizing a business-oriented case simply because of its scope is insensitive to the needs of other Canadians waiting for their cases to be resolved by the Supreme Court of Canada. Parents desperately seeking a resolution by the Supreme Court of Canada on the question of whether government is required to pay for the intensive early behavioural therapies which are widely considered to be the only effective intervention for autism no doubt feel for the individuals holding mountains of worthless commercial paper, but their case has been preceding through the courts for over three years at this point – and they have been lucky that it was that quick.

No one disputes the seriousness of the matters in Metcalfe & Mansfield, because you cannot dispute that $32 billion is not important – both to the holders of that capital and to the Canadian economy as a larger whole. But most cases that make it to the Supreme Court of Canada pose important legal questions that must be answered, and behind most of those legal questions lies human suffering. Allowing a business-oriented case to take precedence over the other cases the Supreme Court of Canada must consider – to effectively jump the queue – is to effectively assign dollar value to tragedy and decide on case decisions that way.

The parties in Metcalfe & Mansfield should be heard by the Supreme Court of Canada – and they should also have the grace to wait their turn. Nobody forced them to buy potentially shoddy assets.